Schoolcraft v. The City Of New York et al

Filing 625

DECLARATION of Reply Declaration of Joshua Fitch in Support re: 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit Ex. A - note from Kin mar Lwin, # 2 Exhibit Ex. B - Portions of Patel Deposition, # 3 Exhibit Ex. C - Portions of Bernier Deposition, # 4 Exhibit Ex. D - note from Khuso Tariq, # 5 Exhibit Ex. E - Portions of Lwin Deposition, # 6 Exhibit Ex. F - Report of Frank Dowling, # 7 Exhibit Ex. G - Report of Tancredi, # 8 Exhibit Ex. H - Report of Levy, # 9 Exhibit Ex. I - Report of Lubit, # 10 Exhibit Ex. J - Portion of Sawyer Deposition, # 11 Exhibit Ex. K - Section of Hospital Chart, # 12 Exhibit Ex L - Section of Hospital Chart, # 13 Exhibit Ex. M - Sgt. Chu Summary, # 14 Exhibit Ex. N - Sgt. Chu Interview, # 15 Exhibit Ex. O - Portion of Isakov JPTO, # 16 Exhibit Ex. P - Portions of Lamstein Deposition, # 17 Exhibit Ex. Q - Various Emails to and from defense counsel (redacted), # 18 Exhibit Ex. R - Various Emails (redacted), # 19 Exhibit Ex. S - Paid invoices)(Fitch, Joshua)

Laurence R. Tancredi, MD, JD
129-B East 71'*. Street
New York, N.Y. 10021

September 18,2014

Paul F. Callan, Esq.
Callan, Koster, Brady& Brennan, LLP
One Whitehall Street

New York, NY 10004
R®' Liliana Aldana-Bemier. M.D. adv. Adrian Schoolcraft
Your File No.: 090.155440
Dear. Mr. Callan:

I have reviewed portions ofthe Jamaica Hospital records available to Dr. Liliana

Aldana-Bemier atthe time she examined the plaintiffAdrian Schoolcraft. Inaddition, I
have reviewed relevant portions ofher deposition transcript, and the report ofthe
Plaintiffsexpert, RoyLubit, MD, Ph.D.

Dr. Liliana Aldana-Bemier evaluated the Plaintiff, Adrian Schoolcraft, atthe

Jamaica Hospital on November 1,2009, and on the basis ofher review ofthe following

she concluded that heshould be admitted tothe hospital:

1. EMS records and those fi'om his evaluation in the Medical Emergency Room.
Mr. Schoolcraft was brought into the Medical ERof Jamaica Hospital on October 31,
2009, by members ofthe New York Police Department Early that day he had an

altercation with an officer, felt threatened, and claiming that he was not feeling well with
abdominal pain and discomfort, left his job prior to completion ofhis shift. Members of
the NYPD went to his home, where he had barricaded himself in his room. Apparently
the policemen were able to gain entrance into his room. One version is that they broke
down the door; asecond states that the police got the landlord to open the door. In any
case, he was requested to accompany them tothe precinct. He refused, whereupon the
police put him in handcuffs and involuntarily had him taken to the emergency room of
Jamaica Hospital for evaluation.

The records revealed that he was bi2:arre in his behavior, uncooperative,
suspicious, guarded and agitated before, on entering the hospital and during the medical
evaluation. Furthermore, he manifested paranoid thinking. After medical clearance, a

psychiatrist evaluated him and transferred him to the Psychiatric Emergency Room with a
tentative diagnosis of psychosis NOS.

2. Dr.Aldana-B^ier, who was the Directorof the PsychiatricER, also read the

psychiatric evaluation of theresident, andevaluated Mr. Schoolcrafl herself noting his
paranoid and persecutory thinking about police conspiracies, cover-ups, andclaims that
the police were "after him." Herconcerns were ftirther augmented by information that
six months ormore previously hewas evaluated bya psychiatrist in thepolice
department and found to beemotionally unstable. Asa result, hisgunwas taken away
ftom him at that time.

She tookall these factors into consideration includingthe realizationthat as a
policeman hewould likely haveaccess to weapons, eventhough his gunhad been
removed, that he was living alone with few friends or available collaterals, and no doubt

further appreciated thathe was a bigman, estimated 250 lbs, and could be bodily
injurious toothers, particularly given hiscompromised mental state and manifested lack
ofjudgment. On thebasis ofthese facts, she concluded that he was a foreseeable danger
tohimselfor others and needed additional time in the hospital formedical stabilization.
She committed him imder theMental Hygiene Law Section 9.39, which provides for
Emergency Admission whena person is deemed to have a "mental illness for which

immediate observation, care and treatment inahospital isappropriate and which islikely
to result in serious harmto himselforherselforothers." Thephrase "substantial risk of
physical harm" is included inthe language of the relevant statute. Underlying these
concepts is a notionof "foreseeability".
This law. Section 9.39, allows for 48 hours observation during which timethe
patient is furtherevaluated, othersare contacted with more time availableand a detailed
analysis is conducted to determine whether themore "freedom restricting" confinement—
that of 15days following theassessment ofa second physician, should be conducted.
The Emergency Admission (orcommitment) isoften done quickly inanemergency room
with frequently inadequate information available; it is ajudgment call as is thecase with

any "risk" an^ysis. There is inevitably uncertainty inherent in risk assessment. (See:
Buchanan A.;R, Binder;M. Norko et al: Psychiatric Violence Risk Assessment; Am J

Psychiatry 2012,169: 340 ff. for a detailed discussion of the conceptual problems ofrisk
assessment): On the other hand, where factors, suchas those inthis case,leadto a
reasonable conclusion by the clinician that thereis foreseeable "substantial" risk ofharm

toselfor others, it is essential to minimize serious adverse outcomes and, therefore,
commit the individual.

Dr. Aldana-Bemier's deposition reveals a general knowledge about Section 9.39

ofThe Mental Hygiene Law. She showed that she understood the limited applicability of
that law, the importance of "dangerousness" to self ^d others, and her understanding that
she must doat Aatmoment ofdecision-making what isbest for the patient and for
societyat large. She made a judgmentcall that he was potentially (foreseeably)

dangerous. And atthetime when she didthat she was forced to rely ononly that
information, which was readily available. The very recent history of bizarre behavior,
uncooperativeness, paranoid ideation, agitation, general aggressiveness, and verbal
confi'ontation (altercation with the officer earlier on 10.31.09, and cursing inthe Medical

ER), along with an evaluation of emotional instability resulting in removal ofhis gun
months earlierformed the basis of her triggeringSection 9.39 of the MentalHygiene
Law. She demonstrated in thisjudgment not only an adequate understanding of the law,
butin addition a reasonable "judicious" application ofthe Emergency Admissions
standard. Dr. Aldana- Bemier wasadditionally professional bypresenting thecaseto the
Associate Chairman of the Psychiatry Department, Dr. Dhar, whoconcurred withher
analysis and decision for Emergency Admission. It is very important to get a second

opinion, the perspective of someone to provide a freshlook at the data, and someone who
as a top administrator in the department has likelyprovided oversight for similar
situations.

The diagnosis. Psychosis NOS",was given initiallywhen Mr. Schoolcraflwas
first seenby the psychiatrist in the ER and subsequently used by Dr.Aldana-Bemier
during the period ofemergency admission until a final diagnosis of "Adjustment disorder
with Anxious Mood". Thediagnosis of "Psychosis NOS" wasessentially a working
diagnosis. This diagnosis was present in DSM-IV-TR, whichwas theoperating
handbook formental disorders in 2009. Thisdiagnosis is not explicitly designated in the
mostrecent DSM-V-TM. The criteriafor Psychotic DisorderNot Ottierwise Specified
(NOS) (DSM-IV-TR # 298.9) states in its general description the following:

"This categoryincludes psychotic symptomatology (i.e., delusions, hallucinations,
disorganized speech, grossly disorganized or catatonic behavior) about whichthereis
inadequate information tomake a specific diagnosis or about which there is contradictory
information, or disorders withpsychotic symptoms that do not meetthe criteria for any
specific Psychotic Disorder"

Note that not all of the symptoms must be present;in fact one of these, such as
delusions, wouldfit. Forexample, the description givesthe following three illustrations
(among others) whichin partfit patterns in thiscase:

1.Psychoticsymptomsthat have lasted for less than 1 month but that have not yet
remitted, so that the criteriafor Brief PsychoticDisorderare not met.

2. Persistent nonbizarre delusions withperiods of overlapping mood episodes that have
been presentfor a substantial portion of the delusional disturbance

3. Situations in whichtheclinician hasconcluded thata Psychotic disorder is present, but
isunable to determine whether it is primary, duetoa general medical condition, or
substance induced.

The presence, therefore of paranoid (persecutory ideation and delusions), in addition to
bizarre behavior, suspiciousness and guarded responses, agitation, andaggressive verbal
confrontation (the bizarre behavior, agitation etc. may suggest a mood disorder) would
most likely fit underthecriteria of Psychotic Disorder-NOS